Opinion
No. C 01-1150 VRW (PR)
October 27, 2003
ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a prisoner at San Quentin State Prison, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 1996 conviction from the Superior Court of the State of California in and for the County of San Francisco for kidnapping a child under the age of 14.
Because the Supreme Court of California's decision in People v Martinez, 20 Cal.4th 225 (1999), makes clear that petitioner was convicted for conduct that California law did not prohibit at the time of his conviction, petitioner's kidnapping conviction violates due process as clearly established by the Supreme Court of the United States in In re Winship, 397 U.S. 358 (1970), and Jackson v Virginia, 443 U.S. 307 (1979), and the petition for a writ of habeas corpus is accordingly granted.
STATEMENT OF THE FACTS
The California Court of Appeal summarized the facts of the case as follows:
On August 7, 1995, May Sun-Young and her family lived at 2951 Treat Street in San Francisco. That morning, Ms. Sun-Young was on her way to take her 7-year old daughter, Kirstie, to summer camp and stopped her automobile briefly in the driveway to close her garage door manually as she was backing out onto the street.
As Ms. Sun-Young closed her garage door, a man approached her from behind and said, "Excuse me, can you do me a favor?" While turning around she saw the man later identified as [petitioner] getting into her vehicle, whose engine was still running. He then locked the car doors. Kirstie was still in the vehicle with her seatbelt on and began crying. Because the driver's side window was rolled down about seven inches, Ms. Sun-Young put her arms through the window and struggled with [petitioner] in an attempt to reach the ignition key and turn off the engine.
[Petitioner] then released the parking brake, put the vehicle in reverse, and backed out of the driveway with Kirstie inside and Ms. Sun-Young running alongside the vehicle still attempting to reach the ignition key. The vehicle backed across Treat Street, which was a two-lane road with two parking lanes, until it hit the opposite curb and came to a stop. [Petitioner] estimated the vehicle movement was 30-40 feet; however, both sides at trial suggested the distance moved was approximately 5 car lengths, or 50 feet.
[Petitioner] exited the vehicle, threw the car keys onto the ground, shoved Ms. Sun-Young against a fence, and ran down the street carrying her purse which had been left in the vehicle. Shortly thereafter, a neighbor on Treat Street several blocks away saw a man run by. In response to the neighbor's attempts to stop the man, the fleeing suspect stated, "Stay back, I got a gun." After a brief struggle, the man ran off but was later apprehended by San Francisco police officers and identified as [petitioner].People v Allen, No AO72610, slip op at 5-6 (Cal Ct App. June 11, 1997) (Resp't Ex C).
STATEMENT OF THE CASE
Petitioner was convicted by a jury of carjacking, kidnapping a child under the age of 14, first degree burglary, second degree robbery, receiving stolen property, and auto theft. The jury also found that petitioner suffered a prior conviction for voluntary manslaughter in 1985, that he suffered a prior state prison term following a conviction of receiving stolen property in 1992, and that he committed the crimes of carjacking, kidnapping, robbery and auto theft while on bail on his own recognizance.
On December 14, 1995, the trial court sentenced petitioner to 19 years and 4 months in prison; however, the court recalled the case for resentencing and, on November 15, 1996, the sentence was reduced to 16 years and 4 months.
On June 11, 1997, the California Court of Appeal dismissed the conviction for receiving stolen property and remanded the case for resentencing "for the purpose of affording the trial court an opportunity to consider the exercise of its discretion to dismiss the [prior "strike" and prior prison term] enhancements." The state appellate court affirmed the judgment in all other respects.
On September 17, 1997, the Supreme Court of California granted review on "whether factors in addition to actual distance may be considered in evaluating whether there is sufficient evidence of asportation for purposes of kidnapping punished under Penal Code section 208, subdivision (b)."
On October 29, 1997, the Supreme Court of California ordered further action in petitioner's case "deferred pending consideration and disposition of related issues in People v Martinez",
On April 8, 1999, the Supreme Court of California issued its opinion inPeople v Martinez, 20 Cal.4th 225 (1999), and held, overruling prior precedent, that the trier of fact may consider more than actual distance in evaluating whether there is sufficient evidence of asportation for purposes of simple kidnapping and kidnapping of a child under the age of 14.
On March 15, 2000, the Supreme Court of California dismissed the review in petitioner's case and remanded the cause to the California Court of Appeal pursuant to California Rule of Court 29.4(c). The California Court of Appeal's opinion (and petitioner's direct appeal) then became final.
On August 25, 2000, petitioner filed a petition for writ of habeas corpus in the Supreme Court of California challenging his kidnapping conviction. Among other things, he claimed that the retroactive application of a novel construction of state criminal law to him violated his constitutional rights to due process and equal protection, and that there was insufficient evidence to support his kidnapping conviction. The petition was summarily denied on January 30, 2001.
Petitioner then filed the instant federal petition for a writ of habeas corpus challenging his kidnapping conviction. He raised four claims: (1) the retroactive application of a novel construction of state criminal law to petitioner violated his right to due process; (2) the retroactive application of a novel construction of state criminal law to petitioner but not to other criminal defendants violated petitioner's right to equal protection; (3) insufficient evidence to support his conviction for kidnapping; and (4) CALJIC No. 2.90 (California's standard instruction on reasonable doubt), as revised in 1994, violated due process.
Per order filed May 25, 2001, the court dismissed claim (4) because CALJIC No. 2.90 has been found constitutionally sound by the Ninth Circuit, but found that the other three claims, when liberally construed, appeared colorable under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause, and petitioner has filed a traverse.
DISCUSSION
A. Standard of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413.
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412;Clark v Murphy, 331 F.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
In determining whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the state's "last reasoned decision" as the basis for its judgment. Avila v Galaza, 297 F.3d 911, 918 (9th Cir 2002). However, where the state gives no reasoned explanation of its decision, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. See Himes v Thompson, 336 F.3d 848, 853 (9th Cir 2003); Greene v Lambert, 288 F.3d 1081, 1088 (9th Cir 2002). And "while we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Fisher v Roe, 263 F.3d 906, 914 (9th Cir 2001).
B. Analysis
Under California law, "[e]very person, who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." Cal Penal Code § 207(a).
"Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years," id § 208(a), or, "[i]f the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years," id § 208(b).
Petitioner was convicted of kidnapping a child under the age of 14 in violation of section 208(b). He appealed to the California Court of Appeal on the ground that his kidnapping conviction was not supported by sufficient evidence, particularly as to the required element of asportation of the victim. Petitioner specifically argued that the distance of 50 feet he moved the victim did not meet the minimum distance requirement for simple kidnapping.
The California Court of Appeal noted that for simple kidnapping under California law, the movement of the victim must be "`substantial,' or a distance that is more than `trivial, slight, or insignificant.'" People v Allen, No AO72610, slip op at 7 (Cal Ct App. June 11, 1997) (quotingPeople v Caudillo, 21 Cal.3d 562, 572 (1978)). To interpret the meaning of "substantial," the court then drew a distinction between "pre-1981" cases and "another line of more contemporary cases." Id at 7-15.
The California Court of Appeal explained that although petitioner was convicted of violating section 208(b), the only difference between simple kidnapping under section 207(a) and kidnapping of a child under the age of 14 under section 208(b) is the age of the victim. In all other respects the elements of the crime of kidnapping of a child under the age of 14 are identical to those of the crime of simple kidnapping. People v Allen, slip op at 7 n3.
As to the pre-1981 cases, the court found that they interpreted "substantial" in terms of distance moved only, and that the shortest distance which had met the "substantial" test was a full city block. See id at 7-9 (citing People v Thornton, 11 Cal.3d 738, 768 (1974)). The court conceded that using distance only as a measurement, petitioner's movement of the victim in this case would not meet the legal test of "substantial" movement. Id at 7.
As to the more contemporary cases, however, the court found that the courts had examined other factors in addition to distance, such as the character and the purpose for the movement. Id at 15. The court found these cases persuasive and held that in making the "substantial" movement determination, the character and purpose of the movement, in addition to actual distance moved, were appropriate considerations. Id.
Applying its holding to petitioner's case, the court then concluded that
. . . while in absolute footage the distance moved here may have been empirically short, it was of a character sufficient to justify a finding of "substantiality" by the jury. The movement, in part, was plainly made to prevent Ms. Sun-Young from regaining possession of her vehicle and to facilitate [petitioner's] flight from the area with Kirstie. In addition to evasion of capture, the vehicle was moved from a position of relative safety onto a thoroughfare. The boundary crossed was significant because it placed Kirstie at greater risk of injury. We confirm these factors, couple with the distance traveled, are sufficient to satisfy the "substantial movement" requirement for the crime of simple kidnapping.
Id at 15-16.
Petitioner appealed to the Supreme Court of California, which granted review but then deferred consideration of petitioner's case pending consideration and disposition of related issues in People v Martinez.
On April 8, 1999, the Supreme Court of California issued its decision in People v Martinez, 20 Cal.4th 225 (1999), and clarified the law for kidnapping of a child under the age of 14 under section 208(b).
In Martinez, the defendant had rented a room from a family consisting of a husband and wife, an adult niece and her infant daughter, a 12-year-old son, and two daughters aged 13 and 15. 20 Cal.4th at 229. At some point prior to March 21, 1995, the defendant had made sexual overtures to the oldest daughter. Id. On March 21, 1995, the defendant returned home late, and instigated a violent confrontation with the family, forcing family members to lock themselves in the bathroom. Id. The husband, son, and oldest daughter escaped to seek help. Id. While holding a knife in one hand and a hammer in the other, the defendant put the knife to the niece's rib cage, and demanded that the youngest daughter take him to the oldest daughter. Id. Still holding the knife, he led the young girl through the next room, through the kitchen and the defendant's room, across a 15-foot porch to a point outside the home across the backyard and parking area approximately 40 to 50 feet behind the residence. Id.
The jury found the defendant guilty of kidnapping a child under the age of 14 in violation of California Penal Code sections 207(a) and 208(b), as well as assault with a deadly weapon, false imprisonment, and making terrorist threats. Id at 230-31. On appeal, as in petitioner's case, the California Court of Appeal concluded that if it applied the distance only test of People v Caudillo, 21 Cal.3d 562, 572 (1978), there would be insufficient evidence of simple kidnapping. Id at 231. The court instead adopted an asportation standard that took into consideration whether the movement increased the risk of harm to, or vulnerability of the victim. See id at 235. Because the jury had not been instructed according to this standard, the court remanded for a new trial. Id at 231. The state appealed, and the Supreme Court of California granted review to decide whether section 208(b), "which prescribes a higher sentence for kidnapping of a person under the age of 14, is a separate crime or a punishment provision, and what the standard of asportation is for that statute." Id at 229.
The Supreme Court of California held that, "regardless of whether section 208(b) is a separate crime or a punishment provision, the applicable standard for asportation is that required for simple kidnapping." Id at 232. The court then reaffirmed that the movement of the victim must be "substantial in character" to meet the asportation requirement for simple kidnapping, id at 235; but, overruling the "actual distance only" rule of People v Brown, 11 Cal.3d 784 (1974); People v Caudillo, 21 Cal.3d 562 (1978); and People v Green, 27 Cal.3d 1 (1980), held that the trier of fact may consider more than actual distance in evaluating whether there is sufficient evidence of asportation, id at 236-37. The court cautioned that no combination of contextual factors could suffice to establish asportation if the actual distance moved is very short, however. Id at 237.
The trier of fact may consider the totality of the circumstances, including whether the risk the movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes. Martinez, 20 Cal.4th at 237.
The Supreme Court of California then turned to an examination of whether retroactive application of the revised rule comported with the due process requirement of fair warning that one's contemplated conduct carries criminal penalties. It concluded that its new rule expanded the factual basis for establishing simple kidnapping asportation and gave the defendant no fair warning: "At the time of defendant's crime, the line for simple kidnapping asportation was laid down in our holdings [that distance moved was the only consideration]. Defendant's conduct did not cross it [(he moved the victim only 40 to 50 feet)], and he had no fair warning it would be redrawn." Id at 241 (citing Bouie v City of Columbia, 378 U.S. 347, 356-61 (1964)). The revised rule could not be retroactively applied to the defendant and the evidence consequently was "insufficient to support the judgment of conviction on sections 207(a) and 208(b)." Id at 241.
It mattered not that some lower courts had earlier declined to follow the distance only rule because "[s]uch fundamental judicial error cannot form the basis of constitutionally compelled notice." Martinez, 20 Cal.4th at 240.
Unfortunately for petitioner, nearly a year after the Supreme Court of California decided Martinez, it dismissed its prior grant of review of his conviction without comment. Petitioner proceeded to file a petition for a writ of habeas corpus in the state high court, raising the constitutional due process and equal protection claims he raises here, but again the state high court denied the claims without comment.
Significantly for petitioner, Martinez made clear that for conviction under sections 207(a) and 208(b), the law of California, up until that time, required "substantial" movement of the victim, and in making the "substantial" determination, distance moved was the only consideration. Id at 240. Moreover, movement of less that 75 feet was not enough to support a conviction under section 208(b). See id at 239, 241.
Respondent concedes that at the time of petitioner's crime the "actual distance only" asportation standard of Caudillo, Brown, and Green" was in effect for sections 207(a) and 208(b), and that "the facts of this case (a 30 to 50 foot movement) did not satisfy [it]." Resp't's Mem of P A in Supp of Answer at 15-16. However, respondent argues that petitioner's case is distinguishable because petitioner was charged and convicted of the associated crime of carjacking, and Martinez recognized that the long-standing asportation test for simple kidnapping involving an associated crime has been the single consideration of whether the movement of the victim was "merely incidental to the associated crime," and that in making this determination, the trier of fact may consider the nature and scope of the movement in addition to distance moved. See id at 16-18.
The court finds no support for respondent's argument in Martinez or in earlier case law. In Martinez, the court held that in cases involving simple kidnapping asportation, the jury should be instructed to consider the totality of the circumstances in determining whether the movement is substantial in nature, 20 Cal.4th at 237; and, "[i]n addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality", id (emphasis added). The court explained that the latter consideration is relevant to determining whether more than one crime was committed and is amply supported by the case law. See id (citing In re Early, 14 Cal.3d 122, 129 n9 (1975); People v Daniels, 71 Cal.2d 1119, 1130-31 (1969); Cotton v Superior Court 56 Cal.2d 459, 465 (1961); and People v Magana, 230 Cal App.3d 1117, 1121 (1991)).
Martinez, and all of the cases it cites, stand for the same proposition: The requisite asportation for simple kidnapping is not met where movement of the victim is merely incidental to the commission of an associated crime. It is therefore correct that, as respondent suggests, at the time of petitioner's conviction (as well as now), simple kidnapping involving an associated crime required that the movement of the victim be more than incidental to the commission of the associated crime (in petitioner's case, carjacking). Accord In re Early, 14 Cal.3d at 129 n9. But nothing in Martinez, or any of the cases it or respondent cites, supports respondent's contention that this additional requirement makes inapplicable to petitioner Martinez's holding that at the time of petitioner's conviction movement of less than 75 feet was insufficient to support a conviction under section 208(b). See Martinez, 20 Cal.4th at 239-41. In fact, Magana, which Martinez cites with approval, makes clear that at the time of petitioner's conviction, simple kidnapping asportation involving an associated crime required that "the distances involved" be both substantial and not merely incidental to the associated crimes. See Magana, 230 Cal App.3d at 1121 (actual distance of at least one-half mile plus lengthy walk in park sufficient to satisfy asportation standard for simple kidnapping involving associated rapes because distance was neither "trivial nor merely incidental to the rapes").
Respondent's reliance on People v Rayford, 9 Cal.4th 1 (1994), for his contention that the trier of fact could have properly considered the nature and scope of the movement in petitioner's case (in addition to actual distance) in determining whether the movement was merely incidental to the associated carjacking is misplaced. Rayford involved the asportation standard for aggravated kidnapping, which Martinez made clear is markedly different from the simple kidnapping asportation standard at issue here. See Martinez, 20 Cal.4th at 232-25.
After a careful reading of Martinez and other pertinent case law, the court finds that until the time Martinez was decided, when an associated crime was involved, two requirements had to be met to satisfy the simple kidnapping asportation standard. First, the movement had to be "substantial" as measured by distance only, and second, the movement had to be not merely incidental to the commission of the other crime. SeeMartinez, 20 Cal.4th at 235-38. In addition, where, as here, the movement involved was no more than 30 to 50 feet, Martinez makes clear that the evidence is insufficient to support a judgment of conviction under section 208(b). See id at 241.
After Martinez, the movement must be "substantial" as measured by the totality of the circumstances, and second, if an associated crime is involved, "the movement also must be more than that which is incidental to the commission of the other crime." CALJIC No 9.50 (2003).
The Supreme Court of the United States has held since the 1970s that the Due Process Clause of the Fourteenth Amendment forbids a state to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. See Jackson v Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970). In this case, simple kidnapping asportation is a basic element of the crime of which petitioner was convicted and, under the law of California at the time of petitioner's conviction, it is undisputed that moving the victim only 30 to 50 feet was insufficient to satisfy simple kidnapping asportation. See Martinez, 20 Cal.4th at 239-41. The simple, inevitable conclusion is that petitioner's conviction fails to satisfy the Constitution's demands, and that the Supreme Court of California's summary denial of his insufficiency of the evidence claim on collateral review was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent. Accord Fiore v White, 531 U.S. 225, 228-29 (2001) (where state supreme court clarified after defendant's conviction that failure to possess a permit was an element of crime of which defendant was convicted, and where there was no evidence to prove this element, conviction violated due process and had to be vacated). Petitioner is entitled to federal habeas relief on his claim of insufficient evidence.
Having concluded that petitioner is entitled to federal habeas relief on his claim of insufficient evidence, the court need not reach petitioner's remaining due process and equal protection claims.
CONCLUSION
Because the Supreme Court of California's decision in People v Martinez makes clear that petitioner was convicted for conduct that California law did not prohibit at the time of his conviction, his kidnapping conviction violates due process as clearly established by the Supreme Court of the United States and his petition for a writ of habeas corpus is GRANTED.JUDGMENT IN A CIVIL CASE
() Jury Verdict, This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.(X) Decision by Court, This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that pursuant to Order Granting Petition for a Writ of Habeas Corpus filed October 27, 2003, judgment is entered.